Chinese Exclusion and the Mccreary Act of 1893
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23.09 - Comprehensive Immigration Reform in the Jim Crow Era (Do Not Delete) 6/14/2016 5:16 PM Comprehensive Immigration Reform in the Jim Crow Era: Chinese Exclusion and the McCreary Act of 1893 Gabriel J. Chin† & Daniel K. Tu†† I. THE PROBLEM OF CHINESE IMMIGRATION ............................................... 42 II. WHY DID CONGRESS GRANT RELIEF? .................................................... 46 A. Executive Enforcement Policy and the Practical Impossibility of Deportation. ..................................................... 46 B. Anti-Racist Views in Congress .................................................... 51 C. Popular Constitutionalism: Due Process in Spite of the Court .... 53 D. Missionaries and the Institutional Church ................................... 57 E. A Relief Bill Becomes an Enforcement Bill ................................ 59 F. Civil Rights For African Americans ............................................. 60 G. Diplomatic and Trade Concerns .................................................. 61 H. Federalism and State Choice ........................................................ 65 III. CONCLUSION .......................................................................................... 66 For ways that are dark, And for tricks that are vain, The heathen Chinese is peculiar— Which the same I would rise to explain.1 How the law should deal with large groups of deportable non-citizens is both a venerable question of federal legal policy and a major controversy today. This Article examines the first debate in the United States over the choice between mass deportation of those in violation of law, and compromising the firmness of the law, a problem involving Chinese migrants that arose over a century ago. Since the founding of the United States, immigration and citizenship law contemplated a white America. The Naturalization Act of 1790, signed DOI: http://dx.doi.org/10.15779/Z38ZW0J Copyright © 2016 held by Gabriel J. Chin & Daniel K. Tu † Martin Luther King Jr. Professor of Law, UC Davis School of Law; Affiliated Faculty, UC Davis Temporary Migration Cluster & Aoki Center for Critical Race and Nation Studies. Thanks to David Bernstein, and Jonathan Weinberg for comments, and Dean Kevin Johnson and the UC Davis School of law for support for this project. †† J.D., UC Davis School of Law; Associate, Yim and Zhou Attorneys at Law. 1. 25 CONG. REC. 2453 (1893) (remarks of Rep. Bartlett, quoting Bret Harte poem “The heathen Chinee”). 39 23.09 - Comprehensive Immigration Reform in the Jim Crow Era (DO NOT DELETE) 6/14/2016 5:16 PM 40 ASIAN AMERICAN LAW JOURNAL [Volume 23:39 by George Washington, Thomas Jefferson, and John Adams, limited the privilege to “free white persons.”2 As an act of the First Congress, the 1790 law was approved by many of the Constitution’s Framers.3 Racial restriction remained part of naturalization law until 1952.4 Federal immigration law, like naturalization law, was race-conscious. It developed and grew in the second half of the nineteenth century as a means of excluding Asians.5 A major step was the Chinese Exclusion Act of 1882.6 General numerical limitation would not become a part of federal immigration law until 1921; before then, in principle, any number of immigrants could come, although there were “qualitative” exclusions based on an immigrant’s health or criminal record. Yet Chinese workers were not just limited or subject to quotas; instead, they were excluded absolutely on the basis of race.7 Congress expanded and tightened racial exclusion over time. In 1892, the Geary Act,8 authored by Representative Thomas Geary (D-CA), required Chinese, and only Chinese, to register with the U.S. government on pain of imprisonment and deportation.9 On the advice of distinguished attorneys, almost all Chinese declined to register.10 However, the Supreme Court upheld the Geary Act’s registration requirement in Fong Yue Ting v. United States.11 As a result, Chinese people and the government faced a dramatic problem: U.S. policy deemed Chinese laborers undesirable and prohibited their future entry into the country. Almost all Chinese laborers currently in the United States had become deportable because they chose not to comply with the law: they were unauthorized migrants.12 This was not a racially egalitarian era for Congress; another major accomplishment of the then-sitting 53rd Congress was the repeal of 2. Act of Mar. 26, 1790, 1 Stat. 103 (repealed 1795). 3. Michael Bhargava, The First Congress Canon and the Supreme Court’s Use of History, 94 CAL. L. REV. 1745, 1745 (2006) (noting that the Supreme Court sometimes give special weight “to the actions of the First Congress in resolving a modern-day legal dilemma”). 4. Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1, 14 (1998). 5. Id. at 13–14. 6. Id. at 13. 7. Id. at 234. 8. Act of May 5, 1892, ch. 60, 27 Stat. 25 (1892) (“Geary Act”). 9. Id. The Court later upheld both detention to facilitate deportation as well as criminalization of immigration violations. Wong Wing v. United States, 163 U.S. 228, 235 (1896) (“We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid . So, too, we think it would be plainly competent for congress to declare the act of an alien in remaining unlawfully within the United States to be an offense punishable by fine or imprisonment, if such offense were to be established by a judicial trial.”). 10. See notes 37–50, infra, and accompanying text. 11. 149 U.S. 698 (1893). 12. As Rep. Geary explained “the only Chinese here and legally entitled to be here . were those who had already registered, because under the operation of the law of 1892, the status of all those who did not register was fixed by providing that they should be held to be illegally in the country on the 5th day of May, 1893.” 25 CONG. REC. APP. 234 (1893). 23.09 - Comprehensive Immigration Reform in the Jim Crow Era (DO NOT DELETE) 6/14/2016 5:16 PM 2016] COMPREHENSIVE IMMIGRATION REFORM 41 Reconstruction-era laws protecting the African American franchise,13 which was part of a larger national project aimed at excluding African Americans from politics.14 As the great historian Oscar Handlin explained: “By the end of the [nineteenth] century the pattern of racist practices and ideas seemed fully developed: the Orientals were to be totally excluded; the Negroes were to live in a segregated enclave; the Indians were to be confined to reservations as permanent wards of the nation . .”15 Nonwhites of whatever race or ethnicity had been effectively subordinated by law. The connection between Western racists and Southern white supremacists was explicit. For example, during the debate on the McCreary Act, Representative John Williams (D-MS) explained: “I am willing to trust the motives, the manhood, the generosity, the capacity for self- government, and the capacity for governing inferior races, inherent in the white people of the Pacific Slope, just as I have appealed to them, and to others, to trust the capacity for self-government of the people of the South.”16 In the West as well as the South, minorities were to be excluded from political participation. Anti-Chinese legislators also made the connection between equality for African Americans and the presence of Chinese. Geary noted that he opposed a voting rights bill, a “bill having its origin, no doubt, in the same place as this, which was directed against your people of the South, against your society and the right of the white man to be supreme in the sunny South.”17 He explained that anti-Chinese legislators in the West voted for white supremacy in the South: The two Senators from my own golden State, from the State of Nevada, Republicans from Colorado and Oregon, all joined hands with you and said whenever an attack is made by any alien race upon our brother white men of the South, or upon white civilizations anywhere, you can command our friendship and support . We freely perceived, as brethren, 13. Act of Feb. 8, 1894, 28 Stat. 36. 14. Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter- Majoritarian Difficulty, 43 HARV. C.R.-C.L. L. REV. 65 (2008). 15. OSCAR HANDLIN, RACE AND NATIONALITY IN AMERICAN LIFE 48 (1957). He also memorably wrote: “Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history.” OSCAR HANDLIN, THE UPROOTED 3 (1st ed. 1951). 16. 25 CONG REC. 2527 (1893). See also id. at 2528 (“I am glad to see that early in the history of this Chinese problem [the white people of the Pacific Slope] have been wiser than we were in the early history of the negro problem in the South, when the small number of Africans on this continent constituted a condition other than that with which we are now confronted, and that they are willing to take the question up frankly and deal with it boldly and resolutely.”); id. at 2498 (remarks of Rep. Milliken) (“Is it not true that there is no instance in the history of mankind where any two of the five distinct types of the human race have ever lived together in peace, harmony, and prosperity? Is not that a fact? We have tried to assimilate with the Indian. And we have had a continual conflict, which will end when the Indian goes out of existence. We have tried to assimilate with the Ethiopian; we have had four years of war; and still the end has not come. And now, when the Mongolian lands upon our shore, there is trouble with him.”). 17. 25 CONG. REC. 236 (1893). 23.09 - Comprehensive Immigration Reform in the Jim Crow Era (DO NOT DELETE) 6/14/2016 5:16 PM 42 ASIAN AMERICAN LAW JOURNAL [Volume 23:39 our duty in upholding the idea that white civilization must be dominant on this continent.18 In this environment, one might reasonably assume that racial restrictionists would seize any opportunity to rid the country of a group whose presence, in their belief, would harm the body politic.